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Latta v. State

Court of Appeals of Georgia, Fifth Division

June 13, 2017

LATTA
v.
THE STATE.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          McFadden, Presiding Judge.

         After a jury trial, William A. Latta was convicted of child molestation for touching then-six-year-old M. A.'s vagina over her clothes. On appeal, he challenges the sufficiency of the evidence, but we find the evidence authorized the jury verdict. He argues that the trial court erred in admitting other acts evidence, but we find the trial court did not abuse his discretion in admitting the evidence. He argues that the trial court erred in admitting evidence from four witnesses regarding M. A.'s outcry to them, but we find the child hearsay statute, OCGA § 24-8-820, authorized this evidence and Latta, who did not object to the evidence at trial, has not shown plain error. He argues that the trial court erred in charging the jury on impeachment by prior inconsistent statements, but we find the trial court gave the pattern jury instruction on this issue and Latta, who did not object to the charge at trial, has not shown plain error. He argues that his trial counsel was ineffective in failing to object to the outcry evidence, in failing to request a different jury charge on impeachment, and in failing to seek a mistrial or curative instruction in response to an allegedly improper comment by the state during closing argument, but we find he has not shown that his trial counsel was deficient in any of these respects. For these reasons, we affirm.

         1. Sufficiency of the evidence.

         Latta challenges the sufficiency of the evidence to authorize his conviction. The "relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979) (citation omitted; emphasis in original). In applying this standard, we do not resolve conflicts in the testimony, weigh the evidence, or draw inferences from the evidence, as those are functions of the jury. See id. "As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [s]tate's case, the jury's verdict will be upheld." Miller v. State, 273 Ga. 831, 832 (546 S.E.2d 524) (2001) (citation and punctuation omitted).

         Viewed in this light, the evidence showed that on July 26, 2013, Latta was performing repair work on the air conditioner at the house where M. A. lived. While M. A. watched Latta work, her mother stepped into another room. M. A. testified that Latta put her on his lap and touched her with his hand "in [her] legs, " and that the touch lasted about a minute. She testified that Latta was not showing her the air conditioner when this occurred.

         When M. A.'s mother returned to the room, she saw Latta sitting in a chair; M. A. was between his open legs, and his hands were between the girl's legs and pressed "very low on [her] private part." M. A.'s mother saw Latta pull M. A. toward him and squeeze her. M. A.'s mother immediately "yanked [her] out of [Latta's] arms" and began to yell at Latta in Spanish, which Latta did not understand. M. A.'s mother then called someone on the telephone, and that person told Latta that the mother was accusing him of fondling M. A. and that they were going to call the police. Latta left the house and sat in his parked vehicle for a period of time before leaving at his employer's instruction.

         M. A.'s mother asked the girl what had happened, and M. A. responded that Latta had "motioned for her to come with his hand" and that he had touched her private part. M. A. then went to a nearby house and told a neighbor that the "air conditioner man" had touched her private area and hurt her. M. A. was crying and visibly upset. Alarmed, the neighbor called 911.

         A police officer arrived and saw M. A. crying and holding her hands, crossed, directly over her vagina. He asked the girl if she was in pain, and M. A. responded that she was not in pain but that "a grown man had touched her." The officer testified:

[M. A.] told me - she clearly stated that her - she was in the kitchen with some of her young siblings, the repairman was sitting on a chair - the air conditioning repairman was sitting on a chair in the kitchen. [M. A.'s] mom walked away. At that time the repairman, this is what she told me, he said, come here. She walked over to the repairman, he said sit in my lap, he picked her up with two hands from what she told me, and she sat in his lap with her back to his face. Then she said that the repairman put his hand on her leg above her knee. At that time, she said that he then took his hand over the top of her vagina. And she was wearing a loose skirt at the time. And she said that he didn't go underneath her underwear or her skirt, but he put his hand on top of her vagina.

         In a subsequent interview using an anatomical drawing, M. A. indicated to a police detective that Latta touched her vagina. The detective testified that M. A. told him "her mom was in another room, the man told her, hey come here, which she did, he picked her up, put her on his lap, and then touched her on the vagina over the clothing one time." The jury watched a videorecording of this interview.

         In a pre-arrest interview with a police detective, Latta denied touching M. A. He conceded, however, that he might have brushed up against M. A., although he did not think that occurred. And he admitted that on a prior occasion he had been accused of improperly touching another person while on a repair job. The state presented other acts evidence about this prior incident, which showed that, while examining a refrigerator leak at a restaurant on a university campus, Latta touched the buttocks of a developmentally-delayed student worker without that person's consent. (This incident is discussed in greater detail in Division 2, infra.)

         The evidence authorized the jury to find Latta guilty of child molestation, which occurs when a person "[d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person[.]" OCGA § 16-6-4 (a) (1). We are not persuaded by Latta's argument that the evidence was insufficient to show that he touched M. A. with the required intent to arouse or satisfy either his or the child's sexual desires. Although, as Latta argues, the law does not presume that a defendant acted with criminal intent, the law nevertheless permits a factfinder to infer the necessary intent from circumstantial evidence. OCGA § 16-2-6; Burke v. State, 316 Ga.App. 386, 390 (2) (729 S.E.2d 531) (2012). "[I]ntent, which is a mental attitude, is commonly detectable only inferentially, and the law accommodates this." Id. (citation and punctuation omitted). Moreover, "[t]he intent with which an act is done is peculiarly a question of fact for determination by the jury[.]" Grimsley v. State, 233 Ga.App. 781, 784 (1) (505 S.E.2d 522) (1998) (citation and punctuation omitted).

         The evidence in this case authorized the jury to infer that Latta touched M. A.'s vagina over her clothing and that he intended to arouse his sexual desires or those of M. A. when he did so. There was evidence that Latta specifically called M. A. to him, sat her in his lap, placed his hand on her vagina over her clothes, and held his hand there for up to a minute. The jury reasonably could find from this evidence that Latta touched M. A.'s vagina deliberately, rather than accidentally, and infer that he did so with the intent to sexually arouse himself. See McMurtry v. State, 338 Ga.App. 622, 623-625 (1), (2) (791 S.E.2d 196) (2016); Ayers v. State, 286 Ga.App. 898, 900 (1) (a) (650 S.E.2d 370) (2007).

          2. Other acts evidence.

         Latta challenges the trial court's admission of other acts evidence concerning the incident in which Latta touched the buttocks of the student worker. The trial court admitted the other acts evidence under two sections of our new Evidence Code: OCGA § 24-4-404 (b), which provides that "[e]vidence of other crimes, wrongs, or acts" may be admissible for purposes other than "to prove the character of a person in order to show action in conformity therewith, " and OCGA § 24-4-413 (a), which provides that "[i]n a criminal proceeding in which the accused is accused of an offense of sexual assault, evidence of the accused's commission of another offense of sexual assault shall be admissible and may be considered for its bearing on any matter to which it is relevant." For the reasons set forth below, the trial court did not abuse his discretion in admitting the evidence under OCGA § 24-4-413 (a). See Steele v. State, 337 Ga.App. 562, 565-566 (3) (788 S.E.2d 145) (2016) (trial court's decision to admit other acts evidence will be overturned only where there is clear abuse of discretion). Accordingly, we need not address the admissibility of the evidence under OCGA § 24-4-404 (b). See Dixon v. State, ___Ga.App. ___, ___ (1) (___ S.E.2d ___) (Case No. A17A0233, decided April 19, 2017) (in sexual assault case, the provisions of OCGA § 24-4-413 (a) "supercede the provisions of OCGA § 24-4-404 (b)") (citations and footnote omitted).

         The other acts evidence showed that, on April 3, 2008, while working in his capacity as a repairman, Latta touched the buttocks of D. H., a mentally-disabled student in a special-needs program at a university. D. H. testified that the touching occurred while she was leaning down to put bottles in a box at her campus job. She stated: "I was working in the cafeteria from Chick-fil-A. I got down. I saw a refrigerator guy. He come - he come near me. Well, he touch me on my butt, but I sat up and he grab my hand and said, let's go out from the doors. After that I told him to let go and I went to [another person]." D. H. reported what had happened, and a campus police officer investigated the incident and interviewed Latta. The officer testified that Latta initially said D. H. had recognized and hugged him, then admitted that he probably had touched D. H. but that it had been accidental and had occurred as he was checking a refrigerator leak that D. H. had reported to him. Latta also told the officer that D. H. had told him she felt uncomfortable during their interaction.

         The trial court correctly held that OCGA § 24-4-413 (a) governed the admissibility of the other acts evidence because Latta was accused of an offense of sexual assault and the other acts evidence concerned his commission of another offense of sexual assault. For purposes of OCGA § 24-4-413, the term "offense of sexual assault" includes "[a]ny crime that involves contact, without consent, between any part of the accused's body . . . and the genitals . . . of another person[.]" OCGA § 24-4-413 (d) (2). Latta's act of touching M. A.'s vagina falls within this definition. See United States v. Seymour, 468 F.3d 378, 385 (II) (A) (2) (6th Cir. 2006) (applying Fed.R.Evid. 413 to admit other acts evidence in case where defendant was accused of child molestation); United States v. Godfrey, 611 Fed.Appx. 364, 365 (8th Cir. 2015) (treating evidence that defendant had touched a 13- or 14-year-old girl's vagina over her clothing as a sexual assault for purposes of applying Fed.R.Evid. 413 to admit other acts evidence). The term "offense of sexual assault" also includes conduct that would ...


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